SAB (A Child) [2014] EWHC 384 (Fam)

Application by father for contact with his child who was living with the mother and her civil partner. Dispute as to whether the father intended only to be a sperm donor.

The child was aged 20 months. The mother was AB who was in a same sex relationship with CB. The child was conceived following sexual intercourse with DB. AB had previously had an on/off sexual relationship with DB. It was a matter of dispute as to whether when child was conceived DB was being a willing 'sperm donor' or whether it was intended he would play a fuller role in the child's life. AB and CB did allow contact following the child's birth.

In February 2013 a text showing DB's genitals was received by AB. DB did not send it and could not explain its transmission. Contact broke down. F also said highly offensive and inappropriate things in a court witness statement.

The Guardian recommended regular contact initially supervised. Any contact was opposed by AB and CB.

The judge considered the arguments. He found that DB did not intend to be only a sperm donor but there may have been a lack of clarity about arrangements. He considered that the child's interests were best served by knowing both parents. He expressed the hope that the adults could work together to promote contact.

Counsel for the Applicant Father: MR GORDON SHELTONThe Respondent Mothers appeared in personCounsel for the Guardian: MR DARREN HOWE______________________

JUDGMENTMR JUSTICE HOLMAN:1. In this case I would have preferred to be able to read out a carefully crafted, written judgment. I cannot do so as I am deeply conscious that the mothers in this case are very anxious indeed to be able to return as soon as possible to where they live and there resume their care of the child concerned. Further, I have a very profound sense in this case that the least I say the better.

2. It is indeed a very sad situation. In a letter written as long ago as 23rd August 2013 the mothers forecast that:

"Unfortunately, it is becoming increasingly clear to ourselves that this awful situation will just have to play its course within the court system."

That is what has happened and, despite repeated attempts and encouragement on my part and my affording ample time and opportunities in which to do so, the parties have, unfortunately, not been able to narrow their differences and agree an outcome. Nonetheless, it is very clear that the three adults involved in this case are all, if I may say so, very worthy, caring and decent people, and it is a matter of the utmost sadness that there is currently so great a rift between them.

3. The case concerns a child, SAB (generally known as S), who was born on 5th May 2012 and is accordingly now about 20 months old. He has two mothers and one father. The mothers are Mrs A B, who is his genetic mother and the person who carried and gave birth to him, and her civil partner, Mrs CB. His genetic father is Mr DB.

4. The essential factual background to this case is as follows. A and C, if I may so call them, began living together in A's own home in about February 2005. At that time, and for several years, they were clearly in a full, loving, emotional relationship, fully committed to each other and, I understand, sharing a bedroom. Some difficulty arose in their relationship in early 2010, which had the result that they began to live more separate lives although both still under the same roof in A's house.

5. In about May 2010 A and Mr DB first came into communication or contact with each other through a web-based dating agency. They met and a relationship clearly developed between them. It was both an affectionate relationship and, in due course, a sexual one. They have both described the relationship as having been both on and off. Mr B says that it was rather more on than off, but both agree that there were periods when they saw less of each other and did not continue having a sexual relationship. Nevertheless, in that on/off way the relationship clearly persisted until at least late February 2011. It is common ground between them that they stayed a night together at a certain hotel on 26th February 2011 and had sexual intercourse together.

6. A adamantly maintains that after that night on 26th February 2011 she and Mr B did not have sexual intercourse again together at all until the one occasion in mid August 2011 when S was in fact conceived. Mr DB says that in fact between late February 2011 and mid August 2011 their relationship did continue on the previous on and off basis, and he is adamant that there were at any rate a number of occasions in the period between February and August when they continued to have sexual intercourse. It does seem clear, however, that not long after that night at the hotel the loving and intimate relationship between A and C resumed.

7. I will now deliberately jump to mid August 2011. It is fully agreed between A and DB that on one occasion on or about 17th August 2011 they did have sexual intercourse together. Further, it is fully agreed between them that when they had sexual intercourse on that occasion their hope, purpose and intention was to conceive a child. A had stopped taking the pill, which she had previously taken for many years, some three months earlier. So two agreed clear facts about this case are, first, that without doubt DB is the genetic father of S and, second, that S was conceived by normal sexual intercourse between two people who, at the point of intercourse, were both deliberately hoping and intending to conceive this child.

8. There is a huge dispute between them as to what their respective overall intentions were with regard to the child if conceived. It is the case of A, supported by C, that by August 2011 any romantic relationship between A and DB had come to a complete end. The sole reason why A invited or permitted him to have sexual intercourse with her was as what she has described as a "sperm donor".

9. The case of A and C is that after their relationship had resumed in about April 2011 they desired that A should carry a child and sought some source of insemination. They say, and I accept, that during June A in fact deliberately had sexual intercourse with another man called RS, whom she knew at work. She says that there was no emotional attachment between her and RS and the sole reason why she had sexual intercourse with him on two occasions, close to each other in time while she was ovulating in June 2011, was to conceive a child using him, with his knowledge and agreement, as a sperm donor. As it happened, conception did not result. Soon after that, RS formed a romantic attachment with some other lady, and either A and/or RS felt that it was not appropriate to repeat the process with him.

10. They say also, and produce evidence to the effect that, they obtained some artificial insemination kit or kits and were contemplating that a sample of sperm might be supplied by artificial insemination by a nephew of C. They say that meantime there was some discussion between A and DB, with whom A and C had remained in a pleasant and friendly relationship, during which DB offered himself to be a "sperm donor". They both say in written statements, now at bundle pages D1 and D7, that DB then visited their home and there repeated the offer to become a donor in the presence not only of A but of C.

11. The essential case of A and C is, therefore, that any romantic, or indeed sexual, relationship between A and DB had ended in late February 2011. The sole reason and purpose why A had sexual intercourse with him on one further isolated occasion in August 2011 was so that he could be a "sperm donor", after which, they say, he had agreed that he would "walk away". Their case is, therefore, that it had been expressly agreed prior to conception that DB would "walk away" and have no involvement at all in the life or upbringing of the child if one was successfully conceived.

12. DB's case is rather different. He says in any event, as I have already described, that the romantic relationship continued on an on and off basis right up to August 2011. But more than that he says that there were many discussions between him and A with regard to possibly trying to conceive a child. He says that A was desirous of having a child whom she could bring up with C (that much is common ground) and that he, himself, was keen to father a child with whom he could have some relationship. DB had previously been married for a number of years to a lady who, unfortunately, had proved unable to conceive a child despite attempts at IV treatment and fertilisation. So it was already a source of sadness and regret to DB that he had not been able to father and bring up a child within a marriage. Further, he had actually fathered a child, called L, now aged about 14, during some other relationship. However, he had had nothing to do with L for many years (although he does now occasionally see her) and he felt and feels a great sense of guilt about that. So, says DB, by August 2011 he, himself, felt a desire to father a child, and so it suited him no less than A that they should try to have one together. He very strongly rejects that he ever agreed simply to be a "sperm donor" or that he agreed "to walk away" after the birth of the child.

13. This factual dispute has undoubtedly overshadowed subsequent difficulties with regard to contact and, indeed, these proceedings. However, it was not of itself any absolute obstacle to amicable contact taking place. First, it is clear from numerous texts that A remained friendly and well disposed towards D both before and after the birth of S. For instance, there are texts around August 2012, now at bundle page C38, in which A wrote:

"When I see you I just want to touch you and kiss you and be with you, but me and S are C's whole world and I don't know if I can do it."

A little later she wrote:

"In an ideal world I would be with you and I would still want C in my life, but I know that I can't have that."

Later on 21st August 2012, now at bundle page C40, she wrote:

"Was just going to give you a hug to make you feel better. S sends a soggy S kiss to you."

14. I quite accept the point that has been made several times by A that the source of these texts is supply by DB. It may well be that there are many other texts in which other or different things were said. Nevertheless, in those texts she did say those things.

15. Further, in the immediate period after the birth of S the mothers did voluntarily and willingly permit the father to see and spend time with S, albeit in their presence and generally at their home. There was a hiccup which led to the first application to the court, but that, itself, was amicably resolved on the basis that contact would continue by amicable agreement and arrangement.

16. So it was that between the birth of S in May 2012 and mid February 2013 contact did take place largely amicably and by voluntary arrangement. It is, frankly, a huge tragedy for all concerned that that contact broke down. The reasons are not entirely clear. There is a text from A to D dated 20th February 2012 in which she said: "I thought I'd ask you to leave us alone for a bit please." So that indicates some tension developing at that point. A has said during the course of her evidence that in February 2012 she was under particular stress because her mother was ill at that time, and that may, indeed, have influenced her feelings and reactions.

17. It is impossible now to tell, but it may be that the parties would have got over that temporary hitch but for an incredibly unfortunate event on or about 28th February 2012. DB had taken a photograph of his own private parts, which he had sent by text to some woman otherwise unconnected with this case, to whom he says he was "sexting". Somehow, and the route is completely unknown, that very private but obscene text photograph got sent to A. She accepts that DB did not himself send it to her. He says that he is completely unable to explain how it got from the woman to whom he sent it to A, but obviously it was deeply shocking to A, and no doubt to C, to receive that picture. For a while, at any rate, they must have believed that DB had sent it deliberately directly to them, and it proved a huge set back to the resumption of contact. In the upshot, there has been no contact between S and DB effectively now for a year since 12th February 2013.

18. After some preliminary correspondence, solicitors instructed by DB commenced the present application and proceedings. I have read the surrounding correspondence. It does seem from things written at that time by A and C that the door was indeed open to contact. Unfortunately, the correspondence got bogged down. There was a suggestion of mediation but, after exploring that, A felt that the cost to her would be prohibitive. So, as A and C were later to say in the letter from which I have already quoted, the awful situation has just played itself out in court.

19. Throughout this hearing, which has now spanned three days, I have, frankly, been puzzled as to the intensity of the opposition to contact now, when, until a year ago, it was happening relatively smoothly and given that it was accepted that DB had not, himself, sent or caused the obscene photograph to be sent. It was very difficult to discern any other clear explanation in the facts and circumstances of this case as to why attitudes now appear to be so entrenched.

20. I have read, of course, the third statement of DB, originally signed and dated in November 2013. That included at paragraph 9 a paragraph of some length, and I have been shocked at what DB thought it appropriate to state in that paragraph. Nothing, however, had been said about it throughout the first two and a half days of this hearing. Almost at the very end, whilst she was asking some questions of the child's guardian, Mrs Susan Scott, this morning, A referred to her "hatred" for DB. Apparently she had used the word "hatred" in some meeting or meetings with Mrs Scott, but it was certainly the first time a word of such intensity and violent emotion had been used within the courtroom. I enquired of A why she felt such "hatred" and it emerged that it stemmed from what he had chosen to say in paragraph 9 of his first version of that statement.

21. As a result, that statement has been edited so as to remove altogether the highly offensive parts of paragraph 9, and a fresh version, with a much shorter paragraph 9, has been signed by DB today, 23rd January 2014. All the copies in the courtroom of the earlier version with the longer paragraph 9 have all been returned to Mr Shelton, counsel for DB, who will ensure that they are totally destroyed. I am not going to make any reference whatsoever to the offensive parts of paragraph 9. But it tragically appears that A expresses a feeling of hatred toward somebody for whom she previously felt friendship and affection, in considerable measure because of his foolish lack of judgment in saying such unnecessary, deeply offensive and highly intimate things. As I observed earlier this afternoon, however, it would be very wrong for decisions to be made affecting the entire childhood and, indeed, lifetime of this tiny, vulnerable child on the basis of one foolish misjudgment of that kind.

22. So that is the essential background to this application. It has been well investigated by a CAFCASS officer, Mrs Susan Scott, who was appointed guardian for S. Her report, dated 11th October 2013, carries a very clear and well argued recommendation that there should be some contact between S and his father so as to enable S to grow up with knowledge of, and a relationship with, his father as well as with both his mothers. That report had further elaboration in a position statement dated 7th January 2014 by Mr Darren Howe, counsel for the guardian, which was clearly drafted in consultation with her and to reflect her instructions. It sets out very fully and clearly the view of the guardian that there should be regular and relatively frequent contact, and the reasons for it.

23. Mrs Scott has sat throughout this hearing until this afternoon when she has had to leave, and by her evidence this morning she maintained her position and recommendations and gave very clear reasons for them. Her view is that there should be contact of approximately an hour and a half to two hours' duration at least once a fortnight. She accepts that initially that contact should be supervised. The reason for supervision is not because there is any objective reason to doubt the competence of DB to care for S. There is, indeed, no suggestion at all that he might in any way harm S or not care for him in an entirely appropriate loving, fatherly and competent way. However, as Mrs Scott said this morning, the purpose of supervision would be to assist in reassuring A and C and helping to re-establish the relationship between S and his father in a calm and friendly environment, rather than allowing the evident hostility to interfere.

24. Mr Gordon Shelton, on behalf of the father, has completely allied and associated the father with the recommendations and reasoning of the guardian, and has wisely not suggested or sought that there should be more frequent or longer contact in the foreseeable future than that recommended by the guardian. That reflects the position of his own client. I have, myself, formed a favourable view of DB. Despite his utmost folly in including the passage in paragraph 9 to which I have referred, his attitude and demeanour generally during this hearing has been one of appropriate understanding of the position of the two mothers and an acceptance that his role in the life of S will always be a relatively subordinate one. Nevertheless, he strongly desires that S should grow up with knowledge of himself and in a relationship with himself upon which S may build later if he wishes.

25. There is, of course, one major conflict of fact in this case, namely, whether or not it was agreed that the father would simply be a "sperm donor" and then "walk away" or whether, as the father says, there was a joint intention to conceive a child who, it was anticipated, would have some relationship with both his parents. I can only resolve that conflict on what lawyers call a balance of probability. I am not at all persuaded on a balance of probability that DB did agree, as is alleged, that he would merely be a sperm donor. That does not seem to me to fit either his personality or his personal history. As I have said, his situation was that it had been a source of sadness and regret to him that he had been unable to have a child or children throughout a marriage of some length due to infertility on the part of his wife. It was also a source of the utmost regret and guilt to him that he had never had a proper relationship with his one daughter, L. It seems to me highly unlikely that he would have been willing on the one hand to father a child and on the other hand to completely "walk away".

26. Further, there are a number of facts in the case which do not seem consistent with the notion that, having had intercourse and conceived a child, he would then "walk away". Indeed, it is agreed that in September 2011 he and the mother went on a camping weekend together in the Yorkshire Dales where the two of them shared a tent. They did not have sexual intercourse on that occasion but nevertheless the circumstances were obviously ones of some intimacy.

27. As I have said, after the birth of S the father was permitted to see S quite regularly and amicably. So there was certainly no concept of "walking away" in play for an appreciable period of time after the birth of S. Further, in such texts as are available, nowhere is there an assertion that he had agreed to "walk away". As I have already said, some of the texts are, indeed, quite affectionate; and even where the mother did ask for some time and space away from him, she did not put that in terms that he had agreed always simply to be a sperm donor and walk away.

28. It may be that in this case there was, as so often in these sorts of situations, a lack of clarity and understanding between them. It may very well be that A and C, in the spring and early summer 2011, were looking for a mere "sperm donor" as RS might, indeed, have been. But I cannot accept that when DB had intercourse that night he had, himself, agreed that his role was simply to be that of a sperm donor.

29. In any event, as authority of the Court of Appeal makes clear, even somebody who has agreed to be a mere "sperm donor", unless anonymous, should not necessarily be excluded from the life of the resulting child. However, it is not necessary to wrap up my decision in this case by reference to authority. It is absolutely clear that cases of this kind are highly fact specific. It is absolutely clear that there is only one legal principle in play, namely, that the welfare of the child concerned must be the paramount consideration.

30. The principal reasons that A and C advance against any contact are these. First, A, in particular, clearly has a very strong view as to parental autonomy, and it is her view that she and C (who also has parental responsibility for S) alone know what is best for their child and that they, and they alone, should decide. Whilst I have some appreciation of that point of view, it is, of course, not the law, and it is precisely because an individual parent, or in this case two mothers, do not have that degree of autonomy that courts in the end do have to decide the outcome of cases such as this.

31. Next, they stress that from the outset the agreement was that DB would simply be a sperm donor and walk away. I have already explained that I cannot accept that there was agreement to that effect. It may have been their hope and expectation, but it certainly was not that of DB.

32. Next, A in particular refers to the intensity of her feelings now in relation to DB. As I have said, earlier today she used the word "hatred", and her overall position is that it could not be in the best interests of S to be brought up in a situation of conflict between the adults.

33. Allied to that is a similar, but discretely different, point, namely, that in any event she, or they, cannot bring themselves to promote the image of DB as the father and present him in a positive light.

34. So their overall position is that this would simply be a situation of such stress and intensity of emotions that they would inevitably impact upon S and be damaging to him.

35. I do, of course, appreciate and understand all those arguments. They are often deployed in situations where there is conflict and disagreement as to contact. But the argument and consideration the other way is the real benefits that S may gain throughout his childhood and, indeed, into his adult life from having proper knowledge of, and interaction with, and some relationship with his father.

36. Of course, at this moment, when he is aged 20 months and a mere toddler, none of this is immediately apparent. No one could suggest that S is suffering at this moment from the absence of his father from his life. But it is in infancy that the seeds should be laid for slowly developing a relationship in the most natural of ways as the child grows up. The position of the mothers is that S can, of course, see his father when he is older if he wants to do so. But that would not happen in that spontaneous way, at any rate for many years, unless he has grown up with knowledge of, and some relationship with, his father.

37. All of this was articulated very well this morning by Mrs Scott when she said that it is widely accepted that children do best if they are able to grow up knowing their identity and with knowledge of both their parents. She said that it does not in any way detract from the fact that this particular child does have two mummies. He will benefit from growing up with the knowledge of both his parents. His father is another person in his life with other interests and experiences to offer to him. There is nothing to say that a child does not benefit from more love than less love. Where one parent is excluded it usually has to be proved that there is some risk of harm in some way from that parent. Mrs Scott said she had heard no evidence that DB would harm S in any way; rather, he would make a positive contribution to his upbringing. I have to say that I agree with all of that passage in her evidence, which is, indeed, reflective of and consistent with innumerable similar statements to that effect in legal authorities.

38. There is, indeed, nothing to disqualify this father, DB, from having a relationship with his child and being able to contribute through that relationship to his childhood and upbringing. This is, I am afraid to say, one of those cases where all the difficulty lies between the parents and, in this particular case, in the almost brick wall that A in particular sees between herself and DB and any contact. I have endeavoured to explain how that position has developed from what was really a very promising start. She has got to find it in herself to work round those intense personal feelings in the best interests of her child. There must be contact and I sincerely hope and, indeed, believe that she will in due course find it in herself to present the father in a positive light so that the contact is an enriching rather than a damaging experience for S.

39. For those reasons I will make an order in terms which have already been very fully considered during the course of today and which I have already read out.